SHORT SALES - TAX ANGLE

BL ISSUE of 07-02-08

Short sales tax angle: CBDT wants system in place first

Contra point
Some tax experts, however, point out that there are taxation issues on which clarity from the tax department could make a huge difference, especially for the foreign institutional investors.

K.R.Srivats
New Delhi, Feb 6

The Central Board of Direct Taxes (CBDT) wants to clarify or spell out the tax implications of short-selling and securities lending and borrowing by institutional investors only after a full-fledged securities lending and borrowing (SLB) scheme is put in place by the stock exchanges.
The Securities and Exchange Board of India had in December last year said that the SLB scheme would be within the overall framework of “Securities Lending Scheme 1997.”
Although institutional short-selling was to start on February 1, 2008, it has been delayed reportedly on account of want of clarification from the CBDT on certain taxation aspects.
When contacted, official sources in the revenue department said that the CBDT could clarify or spell out the tax implications only after the SLB is put in place.
“How can one decide on the tax implications unless one knows for sure how the borrowing and lending scheme is proposed to be played out. Taxation is only incidental and subsequent issue. That cannot be a reason why an independent regulatory body should hold the implementation of institutional short selling,” sources said.
Some tax experts, however, point out that there are taxation issues on which clarity from the tax department could make a huge difference especially for the foreign institutional investors.
“FIIs would like clarity on whether short-selling and the profits made from them would be treated as trading profits or capital gains. It would be big issue for entities, say from Hong Kong, which do not enjoy treaty protection. Any decision to treat them as trading profits would imply a tax rate of 42 per cent. Moreover, there is also the risk that their entire income (not only from short selling) would be treated as trading profits,” Mr Hiresh Wadhwani, Partner (Financial Services), Ernst & Young, told Business Line.
Initially, contracts with a tenure of seven trading days are proposed to be introduced. Apart from the characterisation of income (trading profits or capital gains), sources said that there are taxation issues such as levy of securities transaction tax on the lending and borrowing side of the transactions. There is also an issue whether short selling would be considered as “speculative” transactions by the tax department.
“Whether STT is applicable on borrowing of securities or not should be spelt out,” a tax expert said, although many felt that STT will not apply for lending and borrowing of securities even if these are done through the stock exchange platforms.

Related Stories:SEBI willing to review share margin requirement system
SEBI firm on short-selling

COMMENT:
----- Original Message -----
From: ramsunders
To: blfeedback@thehindu.co.in
Sent: Thursday, February 07, 2008 8:34 AM

Contra point
Some tax experts, however, point out that there are taxation issues on which clarity from the tax department could make a huge difference, especially for the foreign institutional investors.

IS NOT THE LEGAL POSITION ON THE SUBJECT MATTER (TAX CONSEQUENCES ON 'TRANSFER' OF STOCK) ALREADY MUDDLED UP TO THE MAXIMUM EXTENT HUMANLY POSSIBLE, BY REASON OF THE DEPARTMENTAL CIRCULARS HITHERTO ISSUED IN THE RECENT TIMES?

DOES NOT THE EXPECTATION OF, OR DEMAND FOR, ANY CLARITY FROM THE TAX DEPARMENT ON THE 'POINT' BEAR TESTIMONY TO THE IMMATURITY IN THE THINKING BEHIND??

BE THAT AS IT SHOULD, IS IT NOT A MATTER IN WHICH THE GOVERNMENT IS LEFT WITH RATHER A HOBSON'S CHOICE (!) -'BETWEEN THE DEVIL AND THE DEEP BLUE SEA'???

WHY THERE IS SCOPE FOR THE TAX EXPERTS TO AT ALL BONAFIDE BELIEVE THAT THE PRESENT PROVISIONS OF THE INCOME-TAX LAW ARE NOT CLEAR ENOUGH, GIVING RISE TO NEED FOR ANY CLARIFICATION WHATSOEVER ON THE 'POINT' ????

V Swaminathan
(vswami@vsnl.com)

PS: Of relevance:

CBDT Cir. 751 Dt. 10-02-07 (224 ITR (St.) 1

Also for wealth of guidance/foreign literature, see: Google - Lending of Securities -Tax consequences

TRANSFER PRICING REGULATIONS

Opinion - Financial Policy

Some ‘pain points’ for the Finance Minister

With the Finance Minister in the midst of a summation of earlier Budgets, here are some irritants in the tax system that need to be addressed at the earliest, to prevent harassment of the genuine taxpayer.

G. Srinivasan

The Finance Minister, Mr P.Chidambaram, is in the midst of making a summation of all his earlier budgets, for Union Budget 2008-09. With the UPA Government facing general elections in 2009, expectations run high of a populist Budget, also reinforced by the results of the recent Gujarat and Himachal Pradesh assembly elections where the BJP cruised back to power comfortably. A cursory glance at the mid-year review of the economy, presented to Parliament by Mr Chidambara m on the last day of the winter session, and the subsequent endorsement to the Eleventh Plan by the National Development Council on December 19, showed that for greater inclusive growth, there is a clear need to foster the fiscal space.
……………

Transfer pricing
Under Sections10A and 10B, tax exemption is granted on the incomes of 100 per cent export-oriented units (EOUs) and units in special economic zones and software technology parks (STPs) doing IT business to service overseas customers. But the provision of transfer pricing, which is made applicable to these units, poses difficulties. There is scarcely reason to subject these cases to transfer pricing since their entire income is exempt. Yet even these units are made to fork out tax because of the adjustments made by the transfer-pricing officer to declared income. Hence units claiming exemptions u/s 10A and 10B should be removed from the purview of transfer pricing regulations.
……………..

FROM V SWAMINATHAN

vswami@vsnl.com
----- Original Message -----
From: ramsunders
To: blfeedback@thehindu.co.in
Sent: Wednesday, January 09, 2008 9:12 AM
Subject: Fw:

----- Original Message -----
From: ramsunders
To: blfeedback@thehindu.co.in
Sent: Wednesday, January 09, 2008 9:03 AM
Ref. - TRANSFER PRICING:

IT IS FOR ANYONE TO SEE THAT, -

Ø MOSTLY, IN THE TREATIES, THERE ARE PROVISIONS ESPECIALLY DEALNG WITH (A) BUSINESS PROFITS, AS ALSO CERTAIN OTHER INCOME, AND (B) “ASSOCIATED ENTERPRISES”.

Ø AS PER THE SETTLED LEGAL POSITION, THOSE SPECIAL TREATY PROVISIONS SHOULD HAVE AN OVERRIDING EFFECT / OUGHT TO PREVAIL, IF / AS THE CORRESPONDING PROVISIONS OF THE IT ACT ARE NOT BUT INCONSISTENT/ INCOMPATIBLE THEREWITH.

ON THE AFORESTATED PREMISE, A MORE BASIC BUT “ACUTELY PAIN (FUL) POINT” REQUIRING TO BE POSED TO THE HONOURABLE FM IS THIS:

WHY AT ALL THE TRANSFER PRICING REGULATIONS AS PER THE IT ACT MUST BE OF RELEVANCE SO AS TO APPLY, IF THEY PRIMA FACIE ARE INCONSISTENT WITH THE SPECIAL PROVISIONS OF THE COMPREHENSIVE TAX TREATY INDIA HAS WITH THE COUNTRY OF WHICH THE NON-RESIDENT (FOREIGN) ENTERPRISE (IN RELATION TO WHICH THE OTHER ENTERPRISE, BEING A PARTY TO AN INTERNATIONAL TRANSACTION, COMES TO BE TREATED AS AN “ASSOCIATED ENTERPRISE”) IS A RESIDENT?

Going by past experience, it seems quite unlikely that, the relevant provision (the Proviso) having been consciously brought in on the statute, any such suggestion as made in the write-up for an amendment of the law would be favorably looked into, or even been made a serious note of, by the government.

Instead, should not the concerned assessees try and seek legal recourse by resting/ pivoting their pleas on the treaty provisions!

NOTE: Some of the points made in my published articles on the subject of transfer pricing (see the Taxmann website) may be found to provide some clues.